Last week the Grand Chamber of the European Court of Human Rights delivered a major judgment in the case of Mouvement raëlien suisse v. Switzerland, no. 16354/06. This will certainly prove to be a leading European case with regard to content and viewpoint based restrictions on the freedom of expression in a public space. It is also notable because the Court was very severely split – 9 to 8 – which is not only a rarity, but highlights the controversial nature of the case and its uncertain precedential value for the future.

Very briefly, these were the facts: the Raelian movement is an organization that claims that aliens have visited the Earth, leaving us a message or two; that science (well, their science) should replace religion; and that the best form of government is a ‘geniocracy’, i.e. rule by the highly intelligent over the masses of the mediocre. The organization has been labeled a cult by many due to the demands it makes of its members; it has also been the subject of several child abuse scandals, since the organization’s founder apparently thought that children should be sexualized, and some of the organization’s leaders practiced what he preached. Today, however, the organization disavows that earlier part of their doctrine.

Here’s the Court’s own description of the particular facts of the case:

14. On 7 March 2001 the applicant association requested authorisation from the police administration for the city of Neuchâtel (the “police administration”) to conduct a poster campaign in the period between 2 and 13 April 2001. The poster in question, measuring 97 cm by 69 cm, featured in the upper part the following wording in large yellow characters on a dark blue background: “The Message from Extraterrestrials”; in the lower part of the poster, in characters of the same size but in bolder type, the address of the Raelian Movement’s website, together with a telephone number in France, could be seen; at the very bottom was the phrase “Science at last replaces religion”. The middle of the poster was taken up by pictures of extraterrestrials’ faces and a pyramid, together with a flying saucer and the Earth.

15. On 29 March 2001 the police administration denied authorisation, referring to two previous refusals. It had been indicated in a French parliamentary report on sects, dating from 1995, and in a judgment of the president of the Civil Court for the district of La Sarine (Canton of Fribourg), that the Raelian Movement engaged in activities that were contrary to public order (ordre public) and immoral.

16. In a decision of 19 December 2001 the municipal council of the city of Neuchâtel dismissed an appeal from the applicant association, finding that it could not rely on the protection of religious freedom because it was to be regarded as a dangerous sect. The interference with freedom of expression had been based on Article 19 of the Administrative Regulations for the City of Neuchâtel (the “Regulations”); its purpose was to protect the public interest and it was proportionate, since the organisation advocated, among other things, human cloning, “geniocracy” and “sensual meditation”.

The decision was later upheld by the Swiss courts, essentially on the same grounds.

The question that the European Court was to answer was thus whether this ban was in accordance with the freedom of expression under Article 10 ECHR. Notably, the restriction on expression was based on both the content and the viewpoint of the message, seen not only as the pretty anodyne poster, but as the poster taken together with the content of the website to which it refers. However, the restriction on expression was not total, but was confined to the organization’s use of a dedicated public space, to which individuals do not have unconditional or unlimited access.

The Court upheld the restriction as proportionate, for a number of reasons. First, it emphasised the importance of the margin of appreciation in this context and the need for the Court as an international supervisory mechanism to defer to the judgment of the domestic authorities (paras. 59-66). The breadth of this margin, or the extent of this deference, would vary depending on the type of speech in question – for instance, commercial speech is deserving of less protection than political speech. And how should we characterize the Raelian aliens poster with a reference to their website? According to the Court (paras. 62-64):

In the present case, the Court observes that it can be reasonably argued that the poster campaign in question sought mainly to draw the attention of the public to the ideas and activities of a group with a supposedly religious connotation that was conveying a message claimed to be transmitted by extraterrestrials, referring for this purpose to a website address. The applicant association’s website thus refers only incidentally to social or political ideas. The Court takes the view that the type of speech in question is not political because the main aim of the website in question is to draw people to the cause of the applicant association and not to address matters of political debate in Switzerland. Even if the applicant association’s speech falls outside the commercial advertising context – there is no inducement to buy a particular product – it is nevertheless closer to commercial speech than to political speech per se, as it has a certain proselytising function. The State’s margin of appreciation is therefore broader. … In such cases, the national authorities are in principle, by reason of their direct and continuous contact with the vital forces of their countries, in a better position than the international judge to give an opinion on the “necessity” of a “restriction” or “penalty” intended to fulfil the legitimate aims pursued thereby. … For this reason the management of public billboards in the context of poster campaigns that are not strictly political may vary from one State to another, or even from one region to another within the same State, especially a State that has opted for a federal type of political organisation.

Bearing this margin of appreciation in mind (paras. 71-72):

In finding the refusal to authorise the campaign in question to be justified, the Federal Court successively examined each of the reasons relied on by the lower courts as justifying such refusal, namely the promotion of human cloning, the advocating of “geniocracy” and the possibility that the Raelian Movement’s literature and ideas might lead to sexual abuse of children by some of its members. … Even though some of these reasons, taken separately, might not be capable of justifying the impugned refusal, the Court takes the view that the national authorities were reasonably entitled to consider, having regard to all the circumstances of the case, that it was indispensable to ban the campaign in question in order to protect health and morals, protect the rights of others and to prevent crime.

In conclusion (para. 75):

[A] distinction must be drawn between the aim of the association and the means that it uses to achieve that aim. Accordingly, in the present case it might perhaps have been disproportionate to ban the association itself or its website on the basis of the above-mentioned factors (see, in this connection, Association Rhino and Others v. Switzerland, no. 48848/07, §§ 66-67, 11 October 2011). To limit the scope of the impugned restriction to the display of posters in public places was thus a way of ensuring the minimum impairment of the applicant association’s rights. The Court reiterates in this connection that the authorities are required, when they decide to restrict fundamental rights, to choose the means that cause the least possible prejudice to the rights in question (see Women On Waves, cited above, § 41). In view of the fact that the applicant association is able to continue to disseminate its ideas through its website, and through other means at its disposal such as the distribution of leaflets in the street or in letter-boxes, the impugned measure cannot be said to be disproportionate.

In a nutshell, the ban was proportionate because (1) the speech was not political, and was indeed analogous to commercial speech, and thus the national authorities had a wide margin of appreciation; (2) the content of the speech ran against the Swiss ordre public, by being anti-democratic, pro-cloning (more specifically, by refering to Clonaid, a commercial entity offering cloning services) and potentially capable of furthering the sexual abuse of children; (3) and the Swiss authorities allowed the organization other avenues of free expression, e.g. through their website.

As I said above, the Court’s decision was made by 9 votes to 8, and the swing vote, as it were, was that of its president, Judge Bratza, who in his concurring opinion puts great emphasis on the need to defer to domestic authorities. The dissenting judges, on the other hand, take great exception to the majority judgment; 7 of the 8 dissenters have a joint dissenting opinion (which is also quite rare in the European Court), 3 of these 7 have a separate joint dissent, and finally the eighth dissenter has his own individual opinion.

For reasons of time I will not elaborate on the dissents in detail, but they provide a lot of rich material – and for that reason alone this is an excellent case for teaching purposes. The dissenters draw extensively on comparative experiences, particularly those of the US Supreme Court whose First Amendment jurisprudence is much more allergic to content and viewpoint based restrictions of this sort. Indeed, I imagine that US scholars would point to this case as paradigmatic evidence of the slippery slope to which content based restrictions on speech might lead. Of course, like its European counterpart US jurisprudence itself proceeds from content-based categorizations of speech into boxes deserving of varying levels of protection (e.g. political, academic, artistic, commercial, obscenity and so on). On the other hand, while different conceptions of judicial deference certainly exist in US constitutional law, as the highest national court the US Supreme Court is a signficiantly different position than the European Court, which is supra-national in nature, and accordingly both less powerful and more sensitive to the need to accommodate diverging approaches to human rights protection in the Council of Europe’s 47 constituent nations.

That said, even with these broader issues aside the judgment is sure to attract significant criticism for its approach to the characterization of the speech at hand (it is really analogous to commercial speech merely because it contains a link to the organization’s website) and because of the quite weak justifications for the ban given by the Swiss authorities, which the majority itself acknowledges would not withstand individual scrutiny on their own terms but somehow survive together. The main driving force of the decision seems to be the margin of appreciation, particularly in the current political context where several states, particularly the UK, criticize the Court as being too activist or interventionist, with Judge Bratza in particular using his presidency to defuse this political row and (at least for the time being) create a somewhat more deferential Court (see also this earlier post on the Scoppola prisoner voting decision). And of course the fact that the Raelians are a bunch of nutters didn’t help the cause of free speech much.

3 Responses

1)The idea of a geniocracy is absolutely political. I don’t see how it could be construed otherwise. It is a statement about who national leaders should be.

2) You mentioned that they had disavowed the child sexualization. Is there any standard on how long it takes for a disavowal (explicit and/or implicit) to “come into effect” as it were? I wonder if we can get this from some of the cases about banning political parties, rallies, etc…

3) I wonder to what degree they were suggesting this. Were they suggesting changing the age of consent from 18 to 16 or from 18 to 8. (These are just examples, I don’t know swiss law at all). Depending on how bad it is, and how long they have disavowed this for, I might consider this sufficient to allow a banning. But if its a slight change in the age of consent, I may not agree but that doesn’t mean it should be banned from public discourse.

4) Nonetheless, even with respect to child sexualization, I don’t see how this could possibly be closer to commercial speech than political speech. If this is to be the fulcrum of the decision, I’d much rather have them say that this kind of speech is highly protected, but in this instance what they are suggesting qualifies under that high standard. At least in this way, the group also gets the moral condemnation (again, subject to my caveats in point 3 above). Not that I’m saying this is political speech (although you can make an argument that it is) but it doesn’t seem at all like commercials speech. Is there a reason the court would want to avoid this?

In the end – is this just a completely political action by the court i.e. the court hiding behind the margin of appreciation or am I missing something else here?

p. 32 (JOINT DISSENTING OPINION OF JUDGES TULKENS, SAJÓ, LAZAROVA TRAJKOVSKA, BIANKU, POWER-FORDE, VUČINIĆ AND YUDKIVSKA)
Even supposing that “the link to the Clonaid website contribute[d] to the promotion of an unlawful activity”, as the Federal Court found, the Swiss Government did not allege that such “promotion” constituted per se an unlawful act punishable under domestic law. Whilst the expression of an opinion in favour of human cloning might shock or offend the majority of people, it is “precisely in the case of ideas that offend, shock and challenge the established order that freedom of expression is the most precious” (see Women On Waves and Others v. Portugal, no. 31276/05, § 42, 3 February 2009).

p. 34
10. Moreover, the Court has always observed in its case-law that it is not its role to cast judgment on the manner in which individuals choose to express themselves, because Article 10 of the Convention also protects the form in which ideas are conveyed (see Thoma v. Luxembourg, no. 38432/97, § 45, ECHR 2001-III). Applicants are free to use the means of expression of their choosing and it is not for the Court to scrutinise them or suggest other forms or arrangements. Ultimately that would be tantamount to imposing on applicants the burden of proving the necessity of the means of communication used and therefore of reversing the logic of Article 10.

p. 36
As to the argument whereby, in accepting a poster campaign in public space, the municipal authorities would be endorsing or tolerating the opinions at issue, we find this not only rather unrealistic in relation to the current role of such authorities, but also dangerous. That would be tantamount to arguing, a contrario, that freedom of expression in public space could be restricted solely for the reason that the authorities disagree with the ideas conveyed. Article 10 of the Convention would then risk becoming inoperative.

p. 39 (JOINT DISSENTING OPINION OF JUDGES SAJÓ, LAZAROVA TRAJKOVSKA AND VUČINIĆ)
In the Swiss system applicable here, the administration of billboards was under private management and the display of the poster was subject to prior authorisation.
As the Court has previously found, “the dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the Court” (see Observer and Guardian v. the United Kingdom, 26 November 1991, § 60, Series A no. 216).

p. 44
One should not forget the societal effects on minority positions of such a police ban. The applicant organisation is undeniably in a minority position precisely because of its unpopular views. While it has continued to have opportunities to express its views (though in the absence of the posters the likelihood of effective communication has been diminished) the ban and its reasons expressed an official legal position on the views of the applicant association, with obvious additional censorial effect. In the context of demonstrations, the Court has recognised that refusals to give authorisation could have had a chilling effect on the applicants (and others participating in the movement and sharing similar convictions).

p. 67-68 (DISSENTING OPINION OF JUDGE PINTO DE ALBUQUERQUE)
Conclusion
The very purpose of Article 10 of the Convention is to preclude the State from assuming the role of watchman for truth and from prescribing what is orthodox in matters of opinion. The State must strictly adhere to the principle of content-neutrality when it decides how to make public space available, refraining from banning a campaign on the pretext that authorisation could imply approval or tolerance of the opinions in question. Such prohibitions are not compatible with the pluralism inherent in democratic societies, where ideas are freely exchanged in public space and truth and error emerge from an unrestricted confrontation of ideas. As John Stuart Mill put it, “The peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of
exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.”62
In the instant case, having regard to the State’s negative obligation to refrain from interfering with the applicant association’s freedom of expression, the mixed nature of the association’s speech, the legality of the speech, the association’s website and statutory purposes at the material time, the inexistence of any clear and imminent danger resulting from this speech and the contradictory and arbitrary scope of the poster ban, and after examining the decisions given by the competent authorities in the light of the narrow margin of appreciation applicable to the case, I cannot but conclude that the reasons on which the impugned ban was based were not sufficient and that the interference did not correspond to a pressing social need.
62 John Stuart Mill, On Liberty, 1859.

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Marko Milanovic

Dr Marko Milanovic is associate professor at the University of Nottingham School of Law. He is co-editor of EJIL: Talk! and a member of the EJIL's Editorial Board, as well as Secretary-General and member of the Executive Board of the European Society of International Law.